Any time a criminal code criminalizes threats, a First Amendment free expression analysis is an essential part of the defense lawyer’s case preparation.

As recently as 2002, the United States Supreme Court addressed the interplay of the First Amendment and Virginia’s criminalizing of threats, in the context of Virginia’s anti-cross burning code § 18.2-423 (involving cross burning on public property, or on another’s property without the owner’s permission). The Supreme Court okayed the statute because the law requires an intent to intimidate before a conviction can be obtained. Virginia v. Black, 538 U.S. 343 (2002). The Supreme Court nevertheless reversed Black’s conviction for burning a cross on property with the owner’s permission, because the jury was instructed — in contravention of the First Amendment — that the very act of burning a cross was enough to allow a presumption that Black intended to intimidate. Black did not entertain whether burning a cross where the property owner consents could amount to burning a cross on “public property”.

Praised be the Colorado Court of Appeals for having recently given First Amendment teeth against prosecutions for threats, here in a juvenile delinquency proceeding. Colorado v. R.D., __ P.3d ___, 2016 WL 7473807 (Co. App., Dec. 29, 2016). In R.D., students from various high schools started badmouthing and playing the dozens with each other on Twitter and even talking about perpetuating violence. R.D. holds that the mere posting of threatening language on Twitter does not automatically allow a prosecution.

Here, R.D. posted about future acts of violence, but his initial tweets admitted he did not know nor where to find A.C., the person at whom R.D.’s tweets were leveled. R.D.’s tweets included “[i]f I see your bitch ass outside of school you catching a bullet bitch”; “you a bitch, ill come to Tgay and kill you nigga”; “all you fuck niggas will get your ass beat real shit”; and “you think this shit a game, I’m not playing.” After A.C. told R.D. where A.C. was, R.D. tweeted a picture of a gun

R.D. applies the following three-part test to conclude that R.D.’s tweets were not criminal:

(1) “[T]o whom the statements were communicated.” Here, before tweeting the picture of the gun, R.D.’s tweets showed he did not know were to find A.C.

(2) “The the manner in which the statements were communicated.” Here, although R.D. directed his messages to A.C. through A.C.’s Twitter handle of @iTweetYouShutUp, R.D.’s tweets all were posted publicly, and not as private messages to A.C.

(3) “The subjective reaction of the person whom the statements concern.” Here, “when R.D. Tweeted a picture of a gun, A.C. responded “you ain’t never shot no one so sit down and get off google images bruh.” “A.C.’s Tweets demonstrate that he did not appear threatened by R.D.’s Tweets and that he did not take precautionary measures to protect himself from R.D.” “While A.C. later testified that he believed R.D.’s Tweets were threats against him, the critical inquiry in true threat analysis is ‘whether the statements, viewed in the context in which they were spoken or written, constitute a “true threat.”‘ … A.C.’s reaction to R.D.’s Tweets shows that he did not view the statements as true threats when they were received.”

R.D. further found that R.D.’s tweets did not constitute “fighting words” to permit a prosecution. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) (fighting words); Cohen v. California, 403 U.S. 15 (1971) (no crime occurs where a person merely wears a jacket proclaiming “Fuck the Draft” in a courthouse hallway).